Opinion
Case No. 3:13-cr-00764-WHO-1
07-19-2017
UNITED STATES OF AMERICA, Plaintiff, v. ALFONZO WILLIAMS, et al., Defendant.
ORDER GRANTING MOTIONS TO SUPPRESS BOOKING STATEMENTS
Re: Dkt. No. 480, 488, 573, 589, 621
INTRODUCTION
Nearly two years ago I granted defendant Antonio Gilton's motion to suppress his answer to a booking question concerning whether he was a member of a gang. The government appealed that decision, and I delayed ruling on similar motions brought by five other defendants. On December 5, 2016, the Ninth Circuit affirmed the prior order. United States v. Williams, 842 F.3d 1143 (9th Cir. 2016). Because the circumstances underlying each of the other defendants' motions justify suppressing their booking statements, I grant their motions as well.
BACKGROUND
I. PROCEDURAL BACKGROUND
The Second Superseding Indictment describes a racketeering case against the Central Divisadero Playas (CDP) gang, an alleged enterprise that promotes and enhances itself through acts of murder, violence, narcotics trafficking, robbery, pimping and other criminal acts. Dkt. No. 139. Proof of membership in CDP is central to the government's ability to prevail in Count One of the Indictment.
On September 1, 2015, I granted defendant Antonio Gilton's motion to suppress his answer to a booking question concerning whether he was a member of a gang. United States v. Williams, No. 13-CR-00764-WHO-1 (Dkt. No. 465), 2015 WL 5138517, at *1 (N.D. Cal. Sept. 1, 2015). I reasoned that the question was reasonably likely to elicit incriminating evidence and "was also inherently coercive, no matter the apparent benign motivation behind it[.]" Id. Since Gilton's response was elicited after he had asserted his right to counsel and no exceptions applied, the question violated his Fifth Amendment right against self-incrimination, as articulated in Miranda v. Arizona, 384 U.S. 436 (1966).
The government appealed that decision, and I delayed ruling on similar motions brought by defendants Esau Ferdinand, Monzell Harding, Jr., Paul Robeson, Barry Gilton, and Alfonzo Williams. See Dkt. Nos. 480, 488, 573, 589, 621. On December 5, 2016, the Ninth Circuit affirmed. United States v. Williams, 842 F.3d 1143 (9th Cir. 2016). I must now address the specific circumstances presented by each of the other defendants.
II. FACTUAL BACKGROUND
A. Defendant Esau Ferdinand
Ferdinand challenges three sets of statements based on three sets of gang classification documents dated October 6, 2009, October 26, 2011, and March 5, 2012. Ferdinand Mot. at 4 (Dkt. No. 480). On October 6, 2009, Ferdinand was arrested and charged with participating in a criminal street gang, intimidation of a witness, and conspiracy. Id. He invoked his right to counsel. Id. During the booking process, a sheriff's deputy asked if he was affiliated with a gang, and Ferdinand replied "Uptown Fillmore." Id. On October 26, 2011, Ferdinand was arrested on various charges, including a robbery and shooting incident that took place in April of that year. Id. The sheriff's deputy identified Ferdinand as an "Uptown Fillmore" gang member based on "Self Admission," and other factors including prior arrests, fellow officers' intelligence, and identifications by validated gang members. Id. at 5. On March 5, 2012, Ferdinand, who had been in continuous custody since 2011, was interviewed by another sheriff's deputy who completed another Classification Unit Information Report identifying Ferdinand as a "Central Davis Player CDP" [sic] gang member based on "direct admission of gang membership." Id.
B. Defendant Monzell Harding, Jr.
Harding is the only one of eleven defendants whose only count is the RICO charge. Harding Mot. at 3 (Dkt. No. 488). The count is supported in the indictment by overt acts of an iPod robbery and witness intimidation. Id.
On August 22, 2009, Harding was arrested for taking a vehicle without owner consent and driving without a license. Id. He was not given Miranda warnings upon his arrest. Id. The next day, a sheriff's deputy interviewed him as part of the booking process. He responded, "I am from Divis. I hook up with 800 block and Chopper City." Dkt. No. 488, Ex. C [under seal]. The classification unit report lists Harding's gang membership as "800 block/Divis." Harding's Mot. at 4. No charges were filed. On October 6, 2009, Harding was arrested for witness intimidation and gang-related conspiracy following his attendance at a preliminary hearing in the murder trial of co-defendant Charles Heard. Id. Officers questioned him, then Mirandized him, and continued questioning him. See Harding's Mot. for Suppression of Evidence Obtained on October 6, 2009 at 3-5 (Dkt. No. 1100). The next day he was interviewed as part of the booking process. Harding Mot. at 4. The classification report indicates that Harding identified himself as "Uptown Fillmore." Id. at 5. On August 8, 2011, Harding was arrested for theft from a locked vehicle. Id. The next day he was interviewed as part of the booking process and the sheriff's deputy listed Harding's gang as "Uptown Fillmore." Id. No charges were filed. On November 9, 2011, Harding was arrested and held on a warrant for a robbery that had allegedly occurred in October 2011. Id. The next day he was interviewed as part of the booking process. Id. A sheriff's deputy completed a questionnaire indicating that Harding was a member of "Fillmore uptown." Id. at 7. A case was filed but later dismissed. Id. at 6. On August 27, 2013, Harding was arrested for burglary and receiving stolen property; he was later convicted of the latter charge. Id. at 7. After his arrest, he was Mirandized and interviewed. He responded to the officer's questions. Joiner Decl. ¶ 3, Ex. B (Dkt. No. 1163). Approximately four and a half hours later, he was interviewed by a sheriff's deputy at a county jail and responded to a question regarding gang affiliation. Id. A classification report identified Harding's gang as "Fillmore/Central Divis Playas." Harding Mot. at 7.
I previously rejected Harding's argument that any purported waiver of his Miranda rights was invalid, and denied his motion to suppress statements as involuntary. Dkt. No. 1097.
C. Defendant Paul Robeson
Robeson is charged in Counts One (conspiracy to conduct the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d)), Sixteen (attempt to entice and persuade an individual to travel for prostitution in violation of 18 U.S.C. § 2422(a)), and Seventeen (attempt to entice and persuade a minor to engage in prostitution in violation of 18 U.S.C. § 2422(b)). Robeson was in police custody on November 2, 2005 in relation to an arrest for the sale or transportation of a controlled substance when he was interviewed by a sheriff's deputy as part of the booking process. Robeson's Mot. at 3 (Dkt. No. 573). The deputy's notes on the classification form indicate that Robeson denied any affiliation with gangs, but admitted he had issues with certain people from "other areas." Id. He reportedly stated, "I live in Filmore [sic]." Id. The sheriff used this statement and Robeson's tattoos to conclude that he was an associate of a criminal street gang. Id. at 4. On March 10, 2007, Robeson was arrested for kidnapping and other charges. Id. The next day he was interviewed by a sheriff's deputy who completed a classification report indicating that Robeson denied gang affiliation, but stated, "I'm Fillmor [sic]." Id. at 4-5. On February 8, 2008, Robeson was arrested for traffic violations; he was not given Miranda warnings. Id. at 5. The next day he was interviewed by a sheriff's deputy, and although the classification report indicates that Robeson denied gang affiliation, the deputy listed Robeson's gang as "Fillmore/Uptown" based on a tattoo reading "UPTWN" and "prior SFSD validation." Id.
D. Defendant Barry Gilton
On June 4, 2012, Barry Gilton's former counsel contacted SFPD Inspector Kevin Jones to inform him that Gilton did not want to give a statement in connection with the murder of Calvin Sneed, the alleged pimp of Gilton's minor daughter. B. Gilton Mot. at 2-3 (Dkt. No. 589). On June 9, 2012, SFPD executed a search warrant at Gilton's residence. Id. at 3. Gilton and his wife were taken into custody and charged with the attempted murder and murder of Calvin Sneed. Id. at 3. Police questioned Gilton despite his counsel's prior and repeated attempts to assert Gilton's right to remain silent and have counsel present. Id. at 4. Later that day, Gilton was booked for murder, discharge of a firearm at inhabited enclosure, and conspiracy to commit murder. Id.
On July 18, 2012, a deputy sheriff questioned Gilton about his gang affiliation, to determine where to place him in custody. Id. According to the report, Gilton stated he "had family who were Central Divis Players and will have issues on B-side." Id. at 5. The deputy checked the box labeled "Self admission: Direct admission of gang membership." Id.
E. Defendant Alfonzo Williams
On July 4, 2012, Williams was arrested and charged with murder, conspiracy to commit murder, and use of a firearm relating to the murder of Calvin Sneed. Williams Mot. at 5 (Dkt. No. 621). He invoked his right to counsel, but officers continued questioning in an attempt to ascertain Williams' connection to co-arrestee Antonio Gilton. Id. When asked, "does that make sense," Williams responded "that ain't what happened, but it makes sense." Id. The next day, as part of the booking process, he was questioned by a sheriff's deputy as to gang affiliation. Id. Williams allegedly stated, "Yeah, I hang out with them, and in the neighborhood." Id.
LEGAL STANDARD
In Miranda v. Arizona, the United States Supreme Court developed safeguards to "secure the privilege against self-incrimination." 384 U.S. 436, 444 (1966). When a defendant "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Id. at 444-45. "[U]nless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." Id. at 479. "The so-called 'booking questions exception' exempts 'from Miranda's coverage questions to secure the biographical data necessary to complete booking or pretrial services.'" Williams, 842 F.3d at 1147 (quoting Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990)). In Williams, the Ninth Circuit held, "[u]nder the circumstances" the booking exception did not apply because "[s]eeking information about gang membership" was "likely to produce an incriminating response[.]" Id. at 1148-49. Specifically, it "h[e]ld only that when a defendant charged with murder invokes his Miranda rights, the government may not in its case-in-chief admit evidence of the prisoner's unadmonished responses to questions about his gang affiliation." Id. at 1150.
DISCUSSION
The Ninth Circuit's decision in Williams forecloses the government's previously proffered arguments in opposition to Antonio Gilton (Dkt. No. 446), and Ferdinand and Harding (Dkt. No. 511). In its Supplemental Opposition, the government chose not to further address the motions of defendants Barry Gilton (Dkt. No. 589), Alfonso Williams (Dkt. No. 621), Esau Ferdinand (Dkt. No. 480), and Paul Robeson (Dkt. No. 573), stating that it "does not intend to offer booking statements from these defendants in its case-in-chief, but reserves the right to do so if the defendants open the door to such evidence." U.S. Supp. Opp. re Booking Statements at 1 n.1 (Dkt. No. 1162). Those defendants' motions are granted without further discussion. I will focus on the government's opposition to defendant Harding's motion.
Robeson points out that the government never responded to his motion. Dkt. No. 1165.
The Ninth Circuit's decision did not address the specific issues raised in Harding's motion because (1) he was Mirandized and waived his rights at some point prior to the booking questions, and (2) he was charged with nonviolent offenses. The government argues that Harding's motion should be denied for these reasons. I. BOOKING STATEMENTS FOLLOWING MIRANDA WARNINGS
The government states that it will not seek to introduce Harding's booking statements following his arrests on August 8, 2011 and November 9, 2011. U.S. Supp. Opp. re Booking Statements at 2 n.3. It focuses its argument on Harding's booking statements on October 7, 2009 and August 27, 2013, after he received Miranda warnings, and on August 23, 2009 and August 27, 2013 following his arrests for non-violent offenses. Id. at 1.
The purpose of Miranda warnings is to protect the privilege against self-incrimination by ensuring that statements made by a person subject to custodial interrogation are voluntary. See Miranda, 384 U.S. at 444. "The court must look at the totality of circumstances and the entire course of police conduct in determining voluntariness. There is no rigid rule relating to the passage of time or a break in events." United States v. Andaverde, 64 F.3d 1305, 1311 (9th Cir. 1995)(citation omitted).
On October 6, 2009, Harding was given Miranda warnings. The next day, he was questioned for booking purposes by a sheriff's deputy at the jail. And on August 27, 2013, less than five hours passed between the time he was given Miranda warnings and questioned for booking purposes. In Andaverde, the Ninth Circuit warned against "a per se rule as to when a suspect must be readvised of his rights after the passage of time or a change in questioners." 64 F.3d at 1312. The court found "the two interrogations were an uninterrupted sequence of events" and "the ten minute interval and the change in interrogators therefore did not require a readministration of Miranda warnings." Id. at 1312-13. It went on to conclude that an interrogation that resumed the next day with the same interrogator did not require additional warnings. Id. at 1313.
At the June 16, 2017 hearing, the government argued that the circumstances surrounding Harding's responses to booking questions on October 6, 2009 and August 27, 2013 are "within" the Anaverde timeline. See U.S. Supp. Opp'n at 3. That is true. But given the lack of a per se rule regarding timing and my obligation to consider the totality of circumstances, it is only one piece of the puzzle.
Harding's booking statements were conducted by a different person in a different location following the passage of 4.5 hours in one instance and one day in the other. Neither occasion constituted "an uninterrupted sequence of events." See Anaverde, 64 F.3d at 1312.
I previously concluded that a gang-affiliation booking question for the purposes of safe housing is inherently coercive, no matter the public safety justification for asking it, because an inmate might be faced with telling the truth and incriminating himself or risking his safety by refusing to answer. See 2015 WL 5138517, at *2-3 (Order Granting A. Gilton's Mot. to Suppress Booking Statements, Dkt. No. 464)(citing People v. Elizalde, 61 Cal. 4th 523 (2015)). While the Ninth Circuit did not address this reasoning in affirming my Order, I see no basis to find that the circumstances here warrant a different conclusion.
The decision must turn on the voluntariness of the response. That is the touchstone of Miranda. See 384 U.S. at 444. The importance of this factor is illuminated in the Williams' dissent: "Time matters here too, because Gilton needed to be safely housed in jail at the time of his transfer from the holding cell." Williams, 842 F.3d at 1153 (Kleinfield, J., dissenting)(emphasis added). I understand Judge Kleinfeld's point that Miranda, and thus, voluntariness, has "no application where exigencies involving public safety justify the question, even though the prophylactic against compelled self incrimination is sacrificed." Id. at 1152. But is it the case that "the need for answers" to booking questions "outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination"? See New York v. Quarles, 467 U.S. 649, 657 (1984). I do not think so.
On October 6, 2009, Harding was arrested with other alleged CDP members for witness intimidation during the murder trial of co-defendant Charles Heard. The issue of whether Harding should have been readvised of his rights prior to the booking questions on October 7, 2009, turns on "whether, in light of all the circumstances, the police should have known that a question was reasonably likely to elicit an incriminating response." United States v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981); see also United States v. Williams, 842 F.3d 1143, 1148 (9th Cir. 2016)("Under the circumstances, are questions about gang affiliation reasonably likely to produce an incriminating response?"). Under the circumstances of October 7, 2009, the sheriff's deputy should have known that the gang affiliation question would elicit an incriminating response. Accordingly, his booking statement does not fall within the traditional "booking question" exception to Miranda. See Williams, 842 F.3d at 1148. The passage of a day, and the change in officers and location, are enough to suggest that he should have been readvised of his rights prior to questioning. Cf. Andaverde, 64 F.3d at 1312-13 ("[T]he two interrogations were so interconnected in time, subject matter, and by [the first officer's] presence that Andaverde must have known that his rights had not materially changed[.]").
II. BOOKING STATEMENTS FOLLOWING ARRESTS FOR NONVIOLENT OFFENSES
To answer this question for Harding's other booking statements, I must turn to the government's second argument against suppressing Harding's statements. It asserts that Harding's arrests for vehicle code violations (August 2009) and residential burglary (August 2013) are not inherently gang-related, and so his booking statements do not fall within the Ninth Circuit's limited holding in Williams. U.S. Supp. Opp. re Booking Statements at 4-5. Accordingly, his booking statements should be admissible under the traditional "booking question" exception to Miranda. Id. at 4-6.
For support, the government cites United States v. Washington, 462 F.3d 1124 (9th Cir. 2006) and United States v. Salgado, 292 F.3d 1169 (9th Cir. 2002). Neither case is on point. In Washington, the Ninth Circuit held that an officer's question about the defendant's gang moniker fell within the booking exception to Miranda. 462 F.3d at 1133. But as the Ninth Circuit found in Williams, the circumstances here present a "far different case" than Washington. 842 F.3d at 1149. It concluded, "[s]eeking information about gang membership is thus far more likely to produce an incriminating response than inquiring about a defendant's nickname." Id. And in Salgado, the Ninth Circuit held that booking questions about place of birth and country of citizenship were not likely to elicit an incriminating response when a defendant is facing charges unrelated to his immigration status. 292 F.3d at 1172. But again, this is a much different case.
The government provides no authority for the proposition that the charges of taking a vehicle without the owner's consent and residential burglary, while non-violent are not "inherently gang-related." See U.S. Supp. Opp. at 5. Harding, on the other hand, points to California Penal Code section 186.22(e), where these same offenses are listed as acts that can show a "pattern of criminal gang activity." Harding's Reply at 5 (Dkt. No. 1169). The question is a close one. While these offenses certainly do not rise to the level of murder, they are obviously relevant to any subsequent accusation of alleged gang membership as evidenced by the legislature's decision to list them in the penal code. Though Harding was not facing gang-related charges at the time of his booking statements, this is not determinative. See Williams, 842 F.3d at 1147 ("The absence of specific gang-related charges does not mean that questions regarding the gang affiliation of a defendant arrested for a violent crime are not likely to prove incriminating."). The record in this case demonstrates the Gang Task Force's long interest in and investigations of gang activity in the Western Addition involving numerous groups, including CDP. See, e.g., 2/12/16 Sgt. Damon Jackson Daubert Hr'g Tr. at 29:24-30:14, 32:8-18, 33:19-34:1, 36:2-8 (Dkt. No. 898) (describing Sgt. Jackson's frequent and extensive interactions with gang members in the Western Addition/Fillmore as early as 2003). I am not convinced that the circumstances allowing booking statements to be excluded should be limited to violent crimes, particularly when the California legislature has explicitly identified a broader category of criminal gang activities. The RICO charge is the only count Harding faces here and the government should not be permitted to prove its case with his potentially involuntary booking statements, purportedly elicited for his protection.
Although the Ninth Circuit explicitly limited the Williams' holding to defendants charged with murder, the "ultimate test" remains whether the sheriff's deputies "should have known that a question was reasonably likely to elicit an incriminating response." Booth, 669 F.2d at 1238; see also People v. Elizalde, 61 Cal. 4th 523, 540 (2015)(finding questions about gang affiliation reasonably likely to elicit an incriminating response when defendant was charged with murder). In light of all the circumstances, I find that the challenged booking questions were reasonably likely to elicit an incriminating response, and I grant Harding's motion to suppress.
CONCLUSION
In accordance with the foregoing, the motions to suppress booking statements made by defendants Ferdinand, Harding, Robeson, B. Gilton, and Williams are GRANTED.
IT IS SO ORDERED. Dated: July 19, 2017
/s/_________
William H. Orrick
United States District Judge